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Lawsuit against Blueky brought by three Alega residents is dismissed


Pago Pago, AMERICAN SAMOA — A federal judge in Honolulu has dismissed a multi million lawsuit, brought by three Alega residents, which targets only AST Telecom, d.b.a, Bluesky Communications along with the company’s current and former executives for alleged violations of US Federal Communications Commission (FCC) rules and regulations.

“Although Plaintiffs might, perhaps, be able to pursue claims through the FCC’s administrative processes or under territorial or local law in American Samoa, they have not stated a federal claim,” Chief U.S District Court Judge J. Michael Seabright wrote in his decision.

“The court thus lacks subject matter jurisdiction over this action,” according to Seabright’s 39-page detailed Aug. 31st ruling, which was the result of the defendants’ “motion to dismiss for Lack of Jurisdiction” for this case.

The judge noted that the defendants argued that plaintiffs have failed to point to any statutory provision that affords them a federal private right of action.

“The court agrees,” he said, noting that, “plaintiffs have failed to state a cognizable federal claim”. Consequently, he said the court lacks subject matter jurisdiction over the case. And therefore the defendants’ Motion to Dismiss is “granted”.

In their complaint filed February this year, the plaintiffs allege that — among other things — the defendants violated FCC Rules and Regulations by improperly hanging and attaching its telecommunication cables on trees and land belonging to the plaintiffs in Alega village and on the official private Alega Marine and Wildlife Sanctuary and Reserve.

Based on an invitation by the court, the FCC join this litigation as amicus curiae - or friends of the court - to address two questions posed by Seabright in which the FCC filed a July 9th “Statement of Interest”.

According to the FCC, the “plaintiffs have not identified any such provision or supporting legal authority that authorizes a private action to enforce the FCC regulations at issue, and we are not aware of any other provision of the Communications Act that would support a private right of action in these circumstances”.

FCC’s statement was cited in Seabright’s ruling dismissing the lawsuit and the “court grants significant weight to the FCC’s Statement of Interest in this case”.

The judge noted that the “regulations at issue are highly technical, requiring application of complex formulas devised by the FCC”. For example, the antenna power and height requirements - under federal law -  require calculation of maximum effective radiated power using complicated formulas based upon service area radius and the station’s antenna height above average terrain.

(See Samoa News online edition July 20th for details of FCC’s statement.)

A week after Seabright dismissed the lawsuit, the plaintiffs filed another lawsuit - on Sept. 98 -  naming as defendants: AST Telecom - along with current and former officials; American Samoa TeleCommunication Authority; American Samoa Power Authority - along with current and former officials as well as board of directors; current and former ASG officials; two Executive Branch agencies; Chief Justice Micheal Kruse; US Secretary of Interior and other federal agencies and officials.

The new $400 million lawsuit, according to court records,  alleges violation of: Federal Environmental Protection Laws, Federal Endangered Species Protection Laws, and Federal Marine Sanctuary Protection Laws.

And plaintiff request the court for an injunctive Relief and Declaratory Relief and Judgement and For Other Relief relating to a Private Alega Marine Protected Area, which was established in 1985.

Named as plaintiffs are - Steven Jay Pincus Hueter, Faamuli Pete Faamuli, and Michael S. Kirk.